STATE OF NEW JERSEY v. SELLERS INGRAM

NOT FOR PUBLICATION WITHOUT THE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.

SELLERS INGRAM, a/k/a

SELLERS INGRAM, III, and

INGRAM SELLERS,

Defendant-Appellant.

___________________________

November 7, 2016

Submitted October 19, 2016 Decided

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-03-0691.

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

Christopher S. Porrino, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

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

I.

Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts two and five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count seven). In a bifurcated proceeding, defendant was found guilty of two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (counts four and six). Judge Michael A. Donio imposed an aggregate fifty-eight year term of imprisonment with a forty-seven and one-half year period of parole ineligibility.

The charges against defendant stemmed from the shooting and killing of Jamal Smith. Several eyewitnesses identified defendant as the shooter. The police found a nine millimeter shell casing at the crime scene. When the police arrested defendant two days after the shooting, he had a nine millimeter Glock 26 handgun in his possession, which he claimed he purchased two days after the shooting. The gun's owner testified at trial that he did not know defendant, did not give defendant permission to use or possess his gun, and the gun was stolen from his apartment several weeks before the shooting. The State's ballistics expert opined at trial that the shell casing found at the scene was ejected from that gun.

The police video-recorded defendant's interrogation at police headquarters. Without objection, a redacted version of the video was played to the jury and again viewed by the jury in the jury room during deliberations.1 During the interrogation, defendant admitted he was at the crime scene and had argued with Smith, but adamantly denied he shot Smith. Defendant insisted that he fled the scene before the shooting after he saw an individual approaching with a shotgun. Defendant steadfastly maintained his innocence throughout the interrogation and made no inculpatory statements.

Defendant appealed his conviction and sentence. Among other things, he challenged the procedures the trial court utilized in permitting the jury to view the video-recorded interview during deliberations. We affirmed defendant's conviction and sentence, but remanded to amend the judgment of conviction to merge count two with count five and count four with count six, and to impose the sentence on count six, not count four, consecutive to count one. State v. Ingram, No. A-0626-11 (App. Div. Dec. 5, 2013) (slip op. at 15-16). Although we found the procedures utilized during the jury's review of the video-recorded interview during deliberations did not comport with State v. Burr, 195 N.J. 119 (2008), and State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994), we nevertheless determined

that the trial error was plainly invited and does not warrant reversal of defendant's conviction. Defense counsel considered defendant's video-recorded statement as a crucial element of the defense strategy that defendant did not shoot Smith and had left the scene before the shooting occurred. Defendant never wavered from his version of events during his lengthy video-taped interview, and always maintained his innocence. In addition, defense counsel referred to defendant's video-recorded statement in summation, emphasizing that defendant consistently maintained his innocence despite the tactics the interviewing detectives used to extract a confession. Defense counsel also consented to the jury's unfettered access to the video recording in the jury room during deliberation.

[Id. at 10-11 (emphasis added).]

We concluded that "defendant invited the error, and the overwhelming evidence of his guilt, as well as the nature of the invited error, require us to affirm his convictions." Id. at 11. Our Supreme Court denied certification. State v. Ingram, 218 N.J. 276 (2014).

II.

During the video-recorded interrogation, defendant referred to an event that occurred "before I even came home." There was also reference to defendant "being away" and having "been there and done that." In addition, a detective tried to sympathize with defendant by saying, "I know you don't want to go back," and "[y]ou know what I'm talking about" and "I've been doing this just as long as you have[.]" Defendant posited that these were references to his prior incarceration and constituted inadmissible N.J.R.E. 404(b) other crimes/bad acts evidence.

At sidebar, a juror commented to Judge Donio and counsel that she heard a reference on the video-recorded interview to defendant getting out of prison. After the juror returned to the jury box, defense counsel advised the judge that the reference to "getting out" was about defendant getting out of the hospital after a car accident. With the consent of all counsel, the judge gave a curative instruction advising the jury that the reference to defendant "getting out" was about him getting out of the hospital and the jurors should not confuse this with defendant getting out of anywhere but a hospital.

In his PCR petition, defendant argued that trial counsel rendered ineffective assistance by: (1) failing to request the redaction of the N.J.R.E. 404(b) evidence in the video-recorded interrogation and request a limiting instruction; (2) collaborating with the prosecution to correct the N.J.R.E. 404(b) error by telling the court a falsehood that "getting out" referred to defendant getting out of the hospital; and (3) failing to object to the procedures the court utilized for the jury's review of the video-taped interview during deliberations. Defendant also argued that appellate counsel rendered ineffective assistance by failing to raise on direct appeal that introduction of the N.J.R.E. 404(b) evidence constituted plain error.

In an April 2, 2015 written opinion, Judge Donio denied the petition without an evidentiary hearing. The judge found that on defendant's direct appeal, we rejected his argument about the jury's review of the video-taped interview during deliberations and concluded there was no structural error in the procedure utilized. Accordingly, the judge ruled this issue was procedurally barred by Rule 3:22-5.

Judge Donio determined that even if not procedurally barred, defendant failed to establish the second prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) that but for counsel's deficiencies, the result would have been different. The judge reiterated our finding that defense counsel considered defendant's video-recorded statement as a crucial element of the defense strategy, and found this was a matter of trial strategy.

Judge Donio found that trial counsel requested and obtained many redactions to the video-recorded interview. The judge determined that even if trial counsel was ineffective for failing to request redactions of the alleged N.J.R.E. 404(b) evidence and a limiting instruction, there were numerous pieces of evidence that pointed to defendant's guilt, such a multiple eyewitnesses and a match between the shell casing found at the crime scene and the weapon recovered from defendant. The judge concluded that "[i]n light of this evidence weighing against the slight potential reference to two or three pieces of [N.J.R.E.] 404[(b)] evidence amidst a lengthy trial, [defendant] has failed to establish that the error calls into question the jury's verdict and thus fails to meet the second prong of Strickland."

Judge Donio determined that defendant made nothing more than bald assertions that trial counsel collaborated with the prosecution to correct the N.J.R.E. 404(b) error. The judge found that defendant failed to show it was factually inaccurate that the reference to him "getting out" was about him getting out of the hospital, or any evidence proving that trial counsel colluded with the prosecution to commit a fraud on the court.

Lastly, Judge Donio found that defendant failed to prove the first prong of Strickland regarding appellate counsel's alleged deficiency. The judge determined there was no reason for appellate counsel to challenge the alleged N.J.R.E. 404(b) references in the video-recorded interview.

On appeal, defendant raises the following contention

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO REQUEST THE REDACTION OF OTHER-CRIMES/BAD ACTS IN HIS STATEMENT TO THE POLICE AND BY FAILING TO REQUEST A LIMITING INSTRUCTION AS TO THEM.

Defendant raises the following contentions in a pro se supplemental brief

POINT I

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL GUARANTEED BY THE UNITED STATES CONSTITUTION WHICH VIOLATED DEFENDANT'S RIGHT TO A FUNDAMENTALLY FAIR APPELLATE REVIEW WITH EFFECTIVE REPRESENTATION AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO [A] FAIR TRIAL[.] [U.S. CONST.,] AMEND[S]. VI, XIV; [N.J. CONST.,] ART. I, [ ] 10.

(A) PCR COURT ERRED WHEN IT FOUND APPELLATE COUNSEL WAS NOT INEFFECTIVE WHEN APPELLATE COUNSEL ERRED IN FAILING TO ARGUE ON DIRECT APPEAL THAT OTHER BAD ACTS PURSUANT TO N.J.R.E. 404(b) PREJUDICED THE MINDS OF THE JURY.

(B) PCR COURT ERRED WHEN IT FOUND TRIAL COUNSEL WAS NOT INEFFECTIVE FOR CORROBORATING WITH THE PROSECUTION TO TELL THE COURT A FALSEHOOD TO CORRECT EVIDENTIARY ERRORS.[2]

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance, material issues of disputed fact lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant

must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.

Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).]

"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). Under the first prong, the defendant must show 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, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citation omitted), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Donio in his well-reasoned written opinion.

Affirmed.

1 Defendant's video-recorded interview was five hours long. The jury reviewed a redacted three-hour version.