STATE OF NEW JERSEY v. FREDDIE L. GRAHAM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDDIE L. GRAHAM,

Defendant-Appellant.

_____________________________

November 21, 2016

Submitted September 27, 2016 Decided

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-03-0298.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Kirah M. Addes, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals a July 9, 2013 order denying his post-conviction relief (PCR) petition without an evidentiary hearing. We affirm.

I.

We previously set forth the facts in this matter in State v. Graham, No. A-4843-08 (App. Div. Apr. 8, 2011) (slip op. at 4-9), certif. denied, 208 N.J. 339 (2011), and briefly restate the facts relevant to this appeal.

On August 9, 2006, M.M.1 was at her boyfriend Wylie Jason Evans's apartment watching television in a bedroom. Evans left the room and a short time later defendant appeared in the doorway brandishing a knife. Defendant threatened M.M., directed that she undress, and took her into another bedroom where Evans's bloodied body was on the floor.

Defendant sexually assaulted M.M., tied her hands behind her back, beat her, stole her purse, and fled. Evans's mother later arrived at the apartment and called the police.

The police found Evans's dead body in the apartment and found M.M. unconscious and unresponsive. M.M. was transported to the hospital where she remained in a coma until she regained consciousness fifteen days later on August 24, 2006.

The police found defendant's backpack in Evans's apartment and contacted him. Defendant agreed to speak with the police on August 21, 2006. He was not a suspect at that time. During the unrecorded interview, defendant said he was at Evans's apartment on August 9, 2006, smoked crack with Evans, and left to return home. Defendant said Evans was alive when he departed.

Due to M.M.'s injuries, she was not interviewed by the police until August 28, 2006. She generally described her recollection of the events and provided a physical description of her assailant. She remained in the hospital for about one-and-a-half months.

During the trial, M.M.'s attending physician explained that M.M. had been "basically in a coma . . . not able to speak or respond," and in shock from blood loss. M.M.'s emergency room discharge summary stated that she experienced a brain injury, loss of consciousness for over twenty-four hours, and utilized a breathing tube for several days. The report further stated that after the breathing tube was removed, M.M. had an altered mental state, meaning her brain was not functioning correctly. It was also reported that M.M. experienced difficulties with her memory when she regained consciousness in the hospital.

Between August 31 and September 8, 2006, M.M. was evaluated by the hospital's psychiatric department. M.M. advised a psychiatrist on August 31, 2006, that she was "paranoid, depressed, having problems sleeping, . . . anxious," and "having fleeting thoughts of suicide." On September 1, 2006, another psychiatrist noted that M.M.'s cognitive functions were diminished but concluded M.M. did not belong in an acute psychiatric ward.

Following M.M.'s discharge from the hospital, detectives showed her a photo array. M.M. selected defendant's photograph from the array and identified him as her assailant.2 At trial, M.M. also identified defendant as her assailant.

In March 2007, defendant was charged in an indictment with first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); two counts of third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (counts two, four); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count five); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) or (4) (count six); and fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d (count seven).

Prior to trial, the judge held a N.J.R.E. 104 hearing on defendant's motion to suppress the statements he made to the police on August 21, 2006. Defendant claimed his statements were not admissible because he had not been advised of his Miranda3 rights prior to the detectives' interrogation of him. At the conclusion of the hearing, counsel withdrew the motion to suppress indicating that portions of defendant's statement were supportive of defendant's defense.

Defendant was convicted at trial of possession of a weapon for an unlawful purpose (count four); armed robbery (count five); aggravated sexual assault (count six); and unlawful possession of a weapon (count seven). He was found not guilty of the remaining charges. Defendant was sentenced to an extended term, aggregate custodial term of thirty years subject to the requirements of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and to the special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4.

We affirmed defendant's conviction and sentence. Graham, supra, slip op. at 16. Defendant's petition for certification was denied. Graham, supra, 208 N.J. at 339.

Defendant filed a pro se PCR petition arguing as follows

POINT I

TRIAL COUNSEL WAS INEFFECTIVE FOR WITHDRAWING [DEFENDANT'S] MOTION TO SUPPRESS PETITIONER'S STATEMENT AND OPTING INSTEAD TO HAVE CERTAIN ASPECT[S] OF THE STATEMENT ADMITTED. (NOT RAISED BELOW)[.]

POINT II

TRIAL COURT'S INSTRUCTION TO THE RECONSTITUTED JURY WAS FATALLY FLAWED WHICH RESULTED IN A DENIAL OF DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE MISLEADING CHARGE GIVEN TO THE JURY AFTER IT WAS RECONSTRUCTED.

On July 15, 2012, defendant submitted four additional arguments

POINT I

TRIAL COUNSEL FAILED TO SUBPOENA OR OBTAIN MEDICAL AND PSYCHIATRIC EXPERTS TO EXPLAIN THE HIGHLY TECHNICAL INFORMATION CONTAINED IN THE MEDICAL DOCUMENTS SUBMITTED INTO EVIDENCE AND DEMONSTRATE HOW THE VICTIM'S BRAIN DAMAGE PROBABL[Y] INFLUENCED HER TESTIMONY.

POINT II

[TRIAL COUNSEL] FAILED TO MOVE TO SUPPRESS AN ALLEGED STATEMENT MADE BY [DEFENDANT] TO DETECTIVES ALTHOUGH THE STATEMENT WAS NOT VIDEO OR AUDIO RECORDED AS REQUIRED BY [THE] NEW JERSEY RULES OF EVIDENCE.

POINT III

DURING [DEFENDANT'S] SENTENCING, THE STATE REQUESTED THAT AN EXTENDED TERM BE IMPOSED, ALTHOUGH [IT] DID NOT PROVIDE THE DEFENDANT OR TRIAL COUNSEL WITH PRIOR NOTICE OF [ITS] INTENT TO SEEK AN EXTENDED TERM.

POINT IV

[TRIAL COUNSEL] ALSO FAILED TO RE-NEW HIS MOTION TO BAR THE IDENTIFICATIONS AND STATEMENTS OF THE VICTIM AFTER INVESTIGATORS ADMITTED THAT THEY WOULD NOT HAVE USED THEM IF THEY HAD KNOWN OF THE VICTIM'S BRAIN DAMAGE AND MENTAL HEALTH HISTORY. [TRIAL COUNSEL] ALSO DID NOT ADDRESS THE FACT THAT THE IDENTIFICATION PROCEDURES WERE CONDUCTED BY AN INVESTIGATOR WHO WAS ACTIVELY INVOLVED IN THE INVESTIGATION OF THE CASE.

Counsel was appointed for defendant and filed a supplemental brief asserting the following arguments

SUPPLEMENTAL POINT [1]

COUNSEL WAS INEFFECTIVE FOR NOT HAVING OBJECTED PURSUANT TO [RULE] 1:7-2 TO THE COURT'S DECISION TO EXCUSE A DELIBERATING JUROR, THUS RAISING THE STANDARD FOR REVIEW FROM PREJUDICIAL ERROR TO PLAIN ERROR.

SUPPLEMENTAL POINT [2]

[DEFENDANT'S] APPLICATION TO CORRECT ILLEGAL SENTENCE.

The PCR court heard argument and in a written opinion denied the petition without an evidentiary hearing. The judge found certain of defendant's claims were procedurally barred because they were argued and adjudicated on direct appeal. The court rejected defendant's remaining arguments finding defendant failed to establish his counsel's performance was constitutionally deficient or that he suffered prejudice as a result of his counsel's alleged errors. The court entered an order denying defendant's petition. This appeal followed.

On appeal, defendant argues

POINT ONE

THE PCR COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIMS, ESPECIALLY ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL[.]

POINT TWO

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PROVIDE PROPER REPRESENTATION TO DEFENDANT BEFORE AND DURING TRIAL[.]

A. M.M.'s mental and psychiatric health was at issue [a]nd should have been vetted more comprehensively [b]y trial counsel before she testified.

B. Trial counsel was ineffective for withdrawing, then not renewing, the N.J.R.E. 104 motion to suppress defendant's unrecorded statement to police.

C. Trial counsel was ineffective for failing to renew his objection to the admissibility of M.M.'s identification evidence in light of her brain injury and residual memory and psychological impairments.

D. Trial counsel was ineffective for failing to object to the court's decision to excuse the deliberating juror.

POINT THREE

DEFENDANT'S [NERA] [N.J.S.A. 2C:43-7.2] SENTENCE WAS ILLEGAL AS IT DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND STATUTORY CREDITS FOR WORK CREDITS AND COMMUTATION TIME[.]

POINT FOUR

DEFENDANT WAS NOT PROPERLY SERVED WITH NOTICE THAT THE STATE INTENDED TO SEEK AN EXTENDED TERM[.]

II.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his or her defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).

In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. 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. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A petitioner must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

"With respect to both prongs of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52.

We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421 (emphasis omitted). We apply that standard here.

We first address defendant's argument the PCR court erred by rejecting his claim that his trial counsel was ineffective by failing to obtain and review M.M.'s "comprehensive medical records" in order to challenge M.M.'s ability to recall events and competence to testify. The PCR court concluded defendant failed to satisfy the second prong of the Strickland standard because he made no showing that had his trial counsel obtained the records, the result of the trial would have been different. See Gaitan, supra, 209 N.J.at 350 (finding that a court may first consider the prejudice prong of the Strickland analysis and dismiss a claim where no prejudice has been shown "without determining whether counsel's performance was constitutionally deficient"). We find no error in the court's rejection of defendant's claim.

The standard for determining the competence of a witness to testify is codified in N.J.R.E. 601. State v. G.C., 188 N.J. 118, 132 (2006). The Rule provides

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by [the rules of evidence] or by law.

[N.J.R.E. 601.]

"Rule 601 reflects 'the basic policy of our law that every person is qualified and compellable to be a witness and to give relevant and competent evidence at a trial.'" G.C., supra, 188 N.J. at 133 (quoting State v. Briley, 53 N.J. 498, 506 (1969)). Disqualification of a witness "should be the exception" to the "general rule that all persons should be qualified to testify." Ibid. (quoting Germann v. Matriss, 55 N.J. 193, 217 (1970)).

If able "to understand questions and to frame and express intelligent answers," a witness is qualified to testify under N.J.R.E. 601(a). Ibid. (quoting State in Interest of R.R., 79 N.J. 97, 114 (1979)). To satisfy the requirements of N.J.R.E. 601(b), a witness must understand the duty to tell the truth "and that the failure to do so could result in adverse consequences." Ibid.

Defendant argues his counsel erred by failing to obtain records concerning M.M.'s injuries and treatment that would have supported a challenge to M.M.'s competence to testify at trial. We disagree. There was extensive trial testimony detailing M.M.'s serious injuries, her treatment, and the effect of her injuries on her cognitive abilities and memory. His trial counsel was provided with records concerning M.M.'s hospital admission and subsequent treatment, and questioned M.M. and her physicians during trial concerning her physical and mental health issues and treatment.

M.M. was administered the oath and testified at trial in a direct and responsive manner. The record demonstrates that she understood the questions posed and provided responsive answers. There is nothing in her testimony showing she did not understand her obligation to tell the truth, evidencing an inability to comprehend the questions asked, or revealing an inability to communicate her responses.

Based upon the record, the PCR court correctly concluded defendant failed to establish that if his counsel had obtained different or additional medical records, there was a reasonable probability M.M. would have been deemed incompetent to testify. Defendant's argument to the contrary is based on speculation and is untethered to any evidence showing M.M. was not competent to testify. M.M.'s inability to recall certain events related to the crimes committed against her is insufficient to support a finding she was not competent to testify. See Phillips v. Gelpke, 190 N.J. 580, 590 (2007) (quoting R.R., supra, 79 N.J. at 116) ("[Q]uestions concerning the [witness's] recall are . . . relevant only insofar as they bear upon the weight which the factfinder places upon testimony that has in fact been given."). The PCR court therefore correctly concluded that defendant failed to demonstrate prejudice under the second prong of the Strickland standard based on any alleged failure of his counsel to challenge M.M.'s competence to testify at trial.

We next consider defendant's contention the court erred by rejecting his claim that his trial counsel's performance was deficient because counsel withdrew defendant's motion to suppress statements he made during his August 21, 2006 police interview. Defendant claimed his statements should be suppressed because the detectives failed to inform him of his Miranda rights.

During the N.J.R.E. 104 hearing on defendant's motion, the detective testified he spoke with defendant after finding defendant's backpack at Evans's home. Defendant was not a suspect at the time of the interview, was not placed under arrest or put in handcuffs, and was told he was free to leave at any time. At the conclusion of the testimony, trial counsel withdrew the motion. He determined that portions of defendant's statement were supportive of the defense and withdrew defendant's objection to the statement's admission. The judge questioned defendant who consented to withdrawal of the motion.

The judge accepted the withdrawal request but also addressed the merits of defendant's motion. The court found the detective's testimony was credible and concluded defendant was not subject to a custodial interrogation when he made the challenged statements. The court found that any failure of the detectives to provide defendant with Miranda warnings would not have required suppression of his statements. See State v. Hubbard, 122 N.J. 249, 266 (2015) (explaining that Miranda warnings are required only when there is a custodial interrogation).

To establish that his defense counsel was deficient under the first prong of the Strickland standard, defendant "must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012). "To rebut that presumption, a defendant must establish that trial counsel's actions did not equate to 'sound trial strategy.'" Chew, supra, 179 N.J. at 203 (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). Strategic choices made after counsel investigates the law and facts and considers all possible options are "virtually unchallengeable." Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695.

Here, we are satisfied trial counsel made a reasoned strategic decision to withdraw the motion to suppress defendant's statements. Counsel utilized the N.J.R.E. 104 hearing to question the detective concerning defendant's interview and establish that portions of defendant's statement the State intended to introduce at trial were supportive of his defense. Trial counsel's strategic decision was sound because the evidence at the suppression hearing established that defendant's Miranda rights were not violated.

"The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990). The PCR court correctly found that counsel was not deficient under the first prong of the Strickland standard by withdrawing the suppression motion because defendant failed to demonstrate that the motion would have been successful. Ibid.; see also State v. O'Neal, 190 N.J. 601, 619 (2007) (holding that counsel is not ineffective by failing to file a meritless motion).

Moreover, because defendant did not demonstrate that the motion to suppress had merit, he also failed to establish a "reasonable probability that, but for" his trial counsel's purported error, "the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As correctly determined by the PCR court, defendant failed to satisfy his burden under the second prong of the Strickland standard.

We next address defendant's argument the court erred by rejecting his claim that his counsel was ineffective by failing to renew his objection to M.M.'s identification of defendant from the photo array. The trial court rejected defendant's request for a hearing on the admissibility of M.M.'s out-of-court identification because defendant failed to show there was any suggestibility in the identification procedure.

The PCR court correctly concluded defendant's claim is barred because his challenge to M.M.'s out-of-court identification and the court's denial of his counsel's request for a hearing could have been raised on direct appeal. R. 3:22-4. In addition, the record supports the rejection of the claim because defendant failed to demonstrate that had his counsel renewed his challenge to M.M.'s identification there was a reasonable probability the identification would have been suppressed and the result of the trial would have been different. Defendant makes no showing that there was any basis for the court to suppress M.M.'s out-of-court identification. Instead, he offers only speculation that one of the detectives "might have influenced [M.M.'s] selection of defendant from the array." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (explaining that a defendant must prove both prongs of the Strickland standard "based on evidence, not speculation"). Again, a trial counsel's performance is not constitutionally deficient, and a defendant cannot establish prejudice, based upon a failure to make a meritless motion. O'Neal, supra, 190 N.J. at 619.

Defendant next contends that counsel was ineffective by failing to object to the court's decision to excuse a deliberating juror. The juror became unavailable after deliberations began and was replaced with the consent of defendant's trial counsel. The replacement of the juror was addressed on defendant's direct appeal and we concluded the replacement did not deprive defendant of a fair trial.

Even assuming trial counsel erred by failing to object to the replacement of the deliberating juror, defendant failed to establish that but for his counsel's error the result of the trial would have been different. As we determined on defendant's direct appeal, the substitution of the replacement of the juror was necessitated by the juror's personal circumstances, was addressed appropriately by the trial court, and did not deprive defendant of a fair trial. Graham, supra, slip op. at 9-15. Defendant therefore cannot establish he suffered prejudice as a result of his counsel's alleged error under the second prong of the Strickland standard.

Defendant also claims that his NERA sentence was illegal and the trial court erred by imposing an extended term sentence because the State failed to provide written notice of its intention to seek an extended term. R. 3:21-4. Defendant's arguments are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and are otherwise barred by Rule 3:22-4(a) and Rule 3:22-5 because they were, or could have been, raised on defendant's direct appeal.

We reject defendant's claim the court erred by failing to conduct an evidentiary hearing. A hearing is required when a defendant establishes a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). Here, the existing record provided an adequate basis for the court's finding that defendant did not establish a prima facie case of ineffective assistance of counsel and therefore an evidentiary hearing was not required.

Affirmed.

1 We employ initials to protect the privacy of the victim.

2 Prior to trial, the court considered defendant's application for a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Defendant argued the police may have been impermissibly suggestive during an October 15, 2006 video recording of M.M. confirming her identification of defendant. The trial court rejected defendant's argument and found no need for a Wade hearing.

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