STATE OF NEW JERSEY v. JERMAINE SMITH-ECHEVARRIA

NOT FOR PUBLICATION WITHOUT THE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.

JERMAINE SMITH-ECHEVARRIA,

Defendant-Appellant.

________________________________________________________________

June 25, 2015

Submitted May 11, 2015 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1253.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury of second-degree robbery, N.J.S.A. 2C:15-1, and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). He was sentenced to an extended term of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery conviction and a concurrent four-year term on the resisting arrest charge.

In his direct appeal, defendant argued (1) the trial court erred in admitting a tape recording of the 911 call placed by a bystander who witnessed the victim chase defendant; (2) the prosecutor committed misconduct by making material misrepresentations and bolstering witness credibility in his summation; and (3) his sentence was excessive. We affirmed his convictions and sentence in an unpublished opinion. State v. Smith-Echevarria, No. A-6150-08 (App. Div. Oct. 31, 2011). The Supreme Court denied his petition for certification, 210 N.J. 262 (2012).

Defendant filed a PCR petition, in which he claimed he was denied the effective assistance of counsel; that the prosecutor had committed misconduct in misrepresenting the location of a witness; and in suppressing exculpatory evidence. Following appointment of counsel, a brief and amended petition was submitted on behalf of defendant. He contended trial counsel was ineffective because she failed to: "properly deal" with alleged discovery violations by the prosecution; ask for a mistrial and produce exculpatory medical testimony; and confer with petitioner about the late discovery, denying him an opportunity to reconsider a plea offer. The PCR court denied the petition, setting forth its reasons in an oral decision.

Defendant presents the following issue 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 RESPOND IN AN APPROPRIATE FASHION TO INFORMATION SHE RECEIVED SHORTLY BEFORE TRIAL FROM THE STATE REFLECTING THE STATE'S THEORY THERE WERE TWO ALLEGED PERPETRATORS WHO ROBBED THE VICTIM RATHER THAN THE DEFENDANT HIMSELF.

C. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HER FAILURE TO ELICIT POTENTIALLY EXCULPATORY MEDICAL TESTIMONY ON THE DEFENDANT'S BEHALF.

POINT II

THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF COUNSEL'S FAILURE TO THOROUGHLY EVALUATE ALL DISCOVERY MATERIALS PROVIDED TO HER WHICH WOULD HAVE PLACED HER ON NOTICE THE VICTIM HAD BEEN ASSAULTED BY TWO INDIVIDUALS RATHER THAN A SINGLE INDIVIDUAL, SHE COULD NOT PROPERLY ADVISE THE DEFENDANT, AS A RESULT OF WHICH HE REJECTED THE PLEA RECOMMENDATIONS OFFERED BY THE STATE AND INSTEAD PROCEEDED TO TRIAL, SUBSEQUENTLY RECEIVING A SENTENCE SIGNIFICANTLY GREATER THAN THAT EMBODIED IN ANY OF THE PLEA RECOMMENDATIONS

We have considered these arguments in light of the record and applicable legal principles. We conclude they lack merit and that no evidentiary hearing was required on the facts of this case.

To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987)

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The decision to hold an evidentiary hearing on a PCR petition lies within the sound discretion of the trial court. State v. Preciose, 129 N.J. 451, 462 (1992). An evidentiary hearing is warranted only "if there is a dispute of fact respecting matters which are not of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2015). When the adequacy of trial counsel is challenged, the PCR court should grant an evidentiary hearing only if the defendant has presented a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462. "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, l58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." Ibid. If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" on appeal. 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).

The facts underlying defendant's convictions are set forth in our earlier opinion. We summarize those facts necessary to provide a context for our analysis.

The victim stated he was walking home when defendant came out of a driveway and grabbed him by the throat. Seconds later, another individual approached and struck the victim twice in the face. The assailants then threw the victim to the ground, continued striking him, and took $440 from his pocket before fleeing. The victim gave chase. When the two split off and ran in different directions, he pursued defendant, who eventually ran behind a house. A bystander called the police, and Officer Christopher Bornheimer of the New Brunswick police responded. Bornheimer and the victim were able to corner defendant, resulting in his arrest.

In short, defendant was caught, red-handed, immediately following the robbery. Nonetheless, he rejected plea offers from the State and elected to proceed to trial.

A.

Defendant first contends his counsel was ineffective for failing to "properly" deal with an alleged discovery violation by the State. He alleges the State failed to advise the defense that the victim stated he was robbed by two assailants. The factual basis here lies in a misinterpretation of the statement given by the victim following the robbery.

At the time the victim was interviewed by Detective David Smith, the victim gave his statement in English because an interpreter was not available. He misused certain pronouns, but he referred to the assailants as "they" several times. However, Smith questioned the victim as if there was only one assailant.

Based on his limited conversation with the victim due to a language barrier and the fact he apprehended only one suspect, Bornheimer also believed there was only one assailant and that the victim accused defendant of punching him in the face and taking his money. Bornheimer described only one assailant in his police report and his grand jury testimony. The police never investigated a second assailant.

At some point prior to trial, defense counsel became aware that the victim had described two assailants, rather than only defendant, as committing the robbery. Defendant argues that, upon learning of the second assailant, defense counsel should have sought a continuance to investigate further and prepared an alternate defense or sought a mistrial.

The record reflects that this revelation had an impact upon the strategy followed at trial. When it was understood that the victim accused the second assailant, rather than defendant, of striking him, the limited potential of a defense that a prior injury to defendant's hand precluded him from conducting the attack was diminished even further. Then, counsel used the purported "late discovery" as a means of attacking the credibility of the victim and raise doubts regarding the good faith of the prosecution. This strategy was evident in her opening statement

[I]t's clear that it was one person from his statement but now, and I'm talking about a couple days ago, at the eleventh hour we suddenly have an unknown person. W[h]ere did this unknown person come from? Somebody's imagination.

Now, it's two people that robbed him. Very convenient.

. . . Now, again, I want to emphasize the fact now we have an accomplice was born[] a couple days ago. Nobody investigated this other person, the police that is.

Defense counsel also cross-examined the victim as to whether he initially identified a second assailant. The victim claimed he described the second assailant in his first meeting with the prosecutor, approximately twenty to twenty-five days after the incident but admitted he did not describe the second assailant in the interview. He explained he was dazed and having trouble making the statement without an interpreter. In her closing, defense counsel followed this theme, extensively discussing the alleged inconsistencies between the victim's initial statement and his testimony concerning two assailants. As the PCR court observed, defense counsel "made the most of the victim's varying accounts."

Given the strength of the State's evidence, this was a very difficult case to defend. In contending counsel was ineffective for failing to seek a mistrial or investigate the matter further, defendant merely second-guesses his counsel's strategic decision. See id. at 157 (stating a reviewing court "must avoid second-guessing defense counsel's tactical decisions [51] and viewing those decisions under the 'distorting effects of hindsight.'" (citation omitted)). Moreover, a decision not to pursue a specific defense must be assessed by taking into consideration the totality of the circumstances, "applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. The plainly strategic choices made by counsel regarding the "late discovery" issue were objectively reasonable, and certainly "'within the wide range of reasonable professional assistance' to which an accused is entitled." State v. Arthur, 184 N.J. 307, 333 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Defendant also failed to show he was prejudiced by this strategy. Defendant cannot demonstrate there is a reasonable probability that if defense counsel asked for a mistrial or further investigated his case, the result would have been different.

The record does not support a conclusion that it would have been an abuse of discretion for the trial court to deny the extraordinary remedy of a mistrial. See State v. Montgomery, 427 N.J. Super. 403, 406 (App. Div. 2012), certif. denied, 213 N.J. 387 (2013); State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). In responding to defendant's motions for a new trial and judgment notwithstanding the verdict, the trial court squarely addressed and rejected defense counsel's claim that there was a miscarriage of justice due to discovery violations.

Defendant also fails to show how further investigation would have altered the outcome of his case. "[W]hen a petitioner claims his trial attorney [18] inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); accord R. 1:6-6. He has failed to do so.

B.

Defendant also asserts his counsel was ineffective for failing to elicit "exculpatory" testimony about a prior hand injury that would have "effectively precluded him from assaulting the victim and rummaging through his pockets." Defendant maintains that, after learning about the second assailant, defense counsel abandoned pursuing this defense because it was an "exercise in futility" due to the theory of accomplice liability. He asserts the defense should have nonetheless pursued admitting the medical evidence because the victim alleged defendant "engaged in conduct which would have required two fully functional hands." This argument has no merit.

In the first instance, this is another case of second-guessing an objectively reasonable strategic decision by counsel. See Marshall, supra, 148 N.J. at 157. The argument also suffers from the absence of a factual basis.

The record does not support the contention that defense counsel failed to investigate this potential defense. At a pretrial hearing, defense counsel discussed her efforts to secure the medical records in question

[DEFENSE COUNSEL]: Now, my client wanted to introduce the hospital records, but the problem is who is going to authenticate it because he probably isn t going to testify and I have to deal with that. If I can get them, I'm having trouble getting them through his family. He says his family -- his girlfriend and his mother have the dates and the info. And I called them at least three times . . . and they still haven t given them to me, and I told them again today.

THE COURT: Okay. I did note that you indicated you wanted medical records.

[DEFENSE COUNSEL]: Well, he wanted the medical records in, but again, I don't know how I'm going to bring them in demonstrating that he cannot punch anyone because his hand was hurt.

THE COURT: Okay.

[DEFENSE COUNSEL]: Or he had an operation.

It appears defense counsel was ultimately successful in obtaining the records because a "Memorandum to the File" refers to "x-ray and hospital report in trial exhibits file." Defendant has failed to show that the relevant medical records reveal an injury that would have precluded him from doing what the victim described. The records fail to show defendant suffered a permanent disability. His hand was injured fifteen months before the robbery. He has not submitted any additional medical evidence or an affidavit from an expert or defendant himself stating defendant suffered from any type of disability that would have precluded him from committing the offense. See Cummings, supra, 321 N.J. Super. at 170.

Defendant has thus failed to show that medical evidence existed which, if introduced at trial, would have altered the outcome of the trial. Therefore, he has satisfied neither prong of the Strickland-Fritz test.

C.

Finally, defendant argues his counsel was ineffective in failing to properly advise him as to whether he should accept a plea offer. He contends because he was unaware of the evidence regarding a second assailant until trial, he was deprived of the opportunity to rationally consider the State's plea offer. This, too, has no merit.

To support this argument, defendant relies upon Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), a case in which it was conceded that counsel's performance was deficient in advising the defendant to reject a plea offer. Id. at ___, 132 S. Ct. at 1383, 182 L. Ed. at 405. This reliance is misplaced.

First of all, the record reflects defense counsel's efforts to persuade defendant to accept a plea offer. Moreover, to satisfy the second prong of the Strickland-Fritz test, defendant was required to "show the outcome of the plea process would have been different with competent advice." Id. at ___, 132 S. Ct. at 1384, 182 L. Ed. at 407. In short, he had to show he would have accepted a plea offer. Defendant's bald assertion that "he would certainly have accepted one of the State's plea offers at some point" rings hollow in light of the fact that he rejected three favorable plea offers.

On June 17, 2008, defense counsel told the court

[O]n behalf of my client I apologize for him. He's just very upset and his family has been calling me. They are all upset. He doesn't want to plea. I can't force him to plea. I wanted [the prosecutor] to put everything on the record so he could understand what he's up against.

The prosecutor stated the State had originally offered defendant a plea agreement recommending a four-year sentence subject to an eighty-five percent period of parole ineligibility. The prosecutor then said, "I told defense counsel today the best I could do is five with 85 which is where we would be as a second degree robbery."

On the first day of trial, July 1, 2008, the parties discussed the plea negotiations that occurred since the last hearing. The transcript includes defense counsel's reference to the victim's changed story. Defendant does not contend he was unaware of the second assailant evidence at this point. Although the prosecutor advised the prior deals were no longer "on the table," the State was willing to recommend a seven-year sentence with an eighty-five percent period of parole ineligibility. The prosecutor said if the case went to trial, he would file an extended term motion and seek consecutive sentences, thus exposing defendant to a twenty-seven year sentence. The court thoroughly explained the sentencing exposure to defendant. The judge asked if he understood and if he wanted more time to discuss the plea offer with his counsel. Defendant declined to speak with counsel and confirmed he understood the sentencing exposure and was ready to proceed to trial.

In sum, the record shows neither evidence of a deficient performance regarding plea negotiations nor a reasonable probability that defendant would have accepted a plea offer. Therefore, we conclude defendant's argument that his counsel was ineffective on this ground fails as well, and no evidentiary hearing was required.

Affirmed.