STATE OF NEW JERSEY v. DAVID SPENCER

NOT FOR PUBLICATION WITHOUT THE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-1377-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID SPENCER,

Defendant-Appellant.

_______________________________________

December 12, 2016

Submitted October 27, 2016 Decided

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1562.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Spencer appeals from an August 6, 2014 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. After reviewing the record in light of the applicable legal principles, we affirm.

I

On September 17, 2008, a jury convicted defendant of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7; third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3); third-degree distribution of heroin in a school zone, N.J.S.A. 2C:35-7; and two counts of second-degree possession of heroin with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1.

On July 10, 2009, after merging the appropriate counts, the court sentenced defendant to nine years in prison, with a three-year period of parole ineligibility. The sentence was to run consecutively to a sentence defendant was already serving.

On direct appeal we affirmed defendant's convictions and sentence. State v. Spencer, No. A-0355-09 (App. Div. June 29, 2011). The Supreme Court denied his petition for certification. State v. Spencer, 209 N.J. 99 (2012). The evidence adduced at trial relevant to the issues on appeal is as follows.

In August 2005, detective Marvin Sykes was conducting surveillance in a high drug distribution area in Paterson. He received information defendant would be arriving in the area after 11 a.m. to deliver heroin to an unknown buyer. Sykes observed a man, later identified as Chad Alston, standing on a street corner for about fifteen minutes when defendant, driving a minivan, pulled up and stopped. Alston got into the back seat and the minivan drove off and stopped two blocks away.

After three or four minutes, Alston got out of the van and was holding a green towel; Sykes had not seen Alston holding this towel earlier when he was standing on the street corner. Defendant then drove off. Because of the towel and the fact they were in a high drug trafficking area, Sykes contacted his backup team to conduct a field interview of Alston.

In response, Detective Washington Griffin and other police officers approached Alston on the street. Alston immediately dropped the items that had been in the towel. The police recovered two "bricks" of suspected heroin, which Sykes described as ten bundles; each bundle consisted of five glassine bags of heroin. Alston was immediately placed under arrest. Hearing heroin had been recovered, Sykes directed the officers to look for the minivan and its driver because, based upon his training and experience, he suspected defendant had conducted a "drug drop."

The police located the van and, after stopping and searching the van, placed defendant under arrest. When they searched defendant, they found $2,571 in cash and an empty sandwich bag in his pocket. No drugs were recovered from the van.1

Alston was charged with second-degree possession of heroin with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1; third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3); and third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7. Before defendant's trial, Alston pled guilty pursuant to an agreement that required his cooperation with the prosecution.2

Alston admitted to the following during his plea hearing. Alston got into the back seat of a van defendant was driving. Rasheen Lewis was sitting in the front passenger seat. Defendant pulled two bricks of heroin from the right front pocket of his jeans and handed them to Alston. Defendant paid Alston to hold the heroin for him until defendant could pick it up at a later time and sell it. However, Alston was arrested minutes later when the drugs defendant gave him fell to the ground as the police approached him.

On September 15, 2011, defendant filed a petition for PCR alleging trial counsel had been ineffective for failing to call "witnesses" during his trial. After he was assigned PCR counsel, he filed a certification clarifying trial counsel had been ineffective for failing to call Alston at trial because it was Alston, not defendant, who had been found in possession of the drugs. Although as part of his plea agreement Alston consented to testify for the State and implicated defendant during the plea colloquy, defendant claimed Alston did so only to secure a reduced sentence. More important, after defendant was convicted, Alston sent defendant a letter apologizing for "lying about him" during the plea hearing.

Defendant produced an undated letter, purportedly signed by Alston, in which he stated, in pertinent part, "[T]he prosecutor[] said if I say that you gave it to me[,] she will take some time off and I was scared and I agreed with them. I know I lied on you . . . and when I was in court to take the stand I told the prosecutor that I lied to them. That's why I never testified on you. . . . [B]ut forgive me."

Defendant also certified Rasheen Lewis "would have testified that Chad Alston came in the van with the drugs and that I didn't know anything about the drugs. [However,] Mr. Lewis is since deceased."

Assigned counsel submitted a brief repeating and elaborating upon defendant's contention trial counsel was ineffective for failing to call Alston and Lewis as witnesses, and argued defendant was at the least entitled to an evidentiary hearing.

In a thorough oral decision, the court found defendant failed to establish a prima facie case of ineffective assistance pursuant to the test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42, 58 (l987). The PCR court elaborated

I understand that Mr. Alston would have been impeached by the fact that he pled guilty and was given certain benefits as a result of his plea if he testified and cooperated against Mr. Spencer.

But this, number one, is Mr. Spencer's friend. And for him to come in and give this type of testimony against his friend makes it very credible.

He also provided details. And he said that he was going to be paid money for doing this for Mr. Spencer. He was going to put the drugs in his apartment and hold them for Mr. Spencer.

And what's also significant to me is he's not someone that's just coming into court and saying this is what Mr. Spencer did and dumping on him. He's saying this is what I did. He's admitting his own guilt. But he's saying in addition to that, Mr. Spencer is guilty as well.

And I can't under any stretch of my imagination think that it would have been helpful for Mr. Spencer if his lawyer had called [Alston] to the witness stand. I think it would have only made things much, much, much worse . . . .

Now given the fact that David Spencer clearly, I mean, had $2571.00 in his pocket; Chad Alston testified at his plea hearing that this defendant, Mr. Spencer, gave him this large amount of drugs to hold in the presence of Rasheen Lewis, who was in the car, what could Rasheen Lewis have said had he been called as a witness for the defense at David Spencer's trial? . . .

What could [Lewis] have said don't believe all of that, Mr. Spencer wasn't selling drugs?

How do you explain the $2571 in his pocket? How do you explain the fact that police officers see Chad [Alston] go in the car without a green towel, come out carrying a green towel loaded with heroin? How do you explain the fact that Chad Alston gave all this incriminating testimony? . . . I see really where there is no benefit that could have been obtained had David Spencer called Rasheen Lewis . . . .

This was a very, very, very difficult case to defend. The evidence was overwhelming. . . . And I think the cross-examination of either or both of these witnesses by the State would have devastated Mr. Spencer beyond the already overwhelming evidence against him. And then he would have had a legitimate right to say what was [trial counsel] thinking by calling these two witnesses that buried me. I might have won without them . . . .

I'm satisfied that the first prong of Strickland has not been met. There were no serious errors made by trial counsel.

And even if I'm wrong in that regard, the second prong is clearly not met. . . . I believe the evidence against Mr. Spencer was overwhelming.

II

Defendant presents the following point for our consideration in his appeal

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CALL WITNESSES ON THE DEFENDANT'S BEHALF AT TRIAL WHO WOULD HAVE PROVIDED BENEFICIAL TESTIMONY.

In his brief, defendant advances the same arguments made before the PCR court. We are not persuaded and affirm.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington and adopted by our Supreme Court in State v. Fritz. 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.

In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing: (l) counsel made errors so egregious counsel was not functioning effectively as guaranteed by the Sixth Amendment of the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We employ "extreme deference" in evaluating trial counsel's performance and acknowledge "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). As a matter of practice, defense counsel's decisions as to trial strategy are "virtually unchallengeable" if made following reasonable investigation. State v. Savage, 120 N.J. 594, 617 (1990) (citing Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695).

For substantially the same reasons set forth in the PCR court's oral opinion, we are satisfied defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).

First, trial counsel's decision to not call either Alston or Lewis was one of strategy, to which we must afford extreme deference. Second, the likelihood Alston would have been impeached by the statements he made during the plea hearing or because of his relationship to defendant was very high, if not inevitable, and could well have alienated the jury from defendant in a case where there already existed substantial evidence against him. Further, defendant provided no evidence Lewis could have strengthened, let alone salvaged, defendant's fragile position he had not transferred the drugs ultimately found in Alston's possession.

Affirmed.

1 Detectives Sykes and Griffin were the only witnesses who testified at defendant's trial.

2 It is not clear to what charge or charges Alston pled guilty.