STATE OF NEW JERSEY v. MARY GASTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2371-05T42371-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARY GASTON,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 11, 2007 - Decided

Before Judges Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-02-0120.

Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Robert H. Corrado, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mary Gaston appeals from the November 14, 2005, order denying her petition for post-conviction relief (PCR). She raises three issues for our consideration.

POINT I

DEFENDANT WAS DENIED HER FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO HER TRIAL COUNSEL'S FAILURE TO REMOVE THE SLEEPING JUROR. (Not Raised Below).

POINT II

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE SHE WAS DENIED HER FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HER TRIAL AND APPELLATE COUNSELS' FAILURE TO CHALLENGE THE TRIAL COURT'S INAPPROPRIATE INSTRUCTIONS TO THE JURY.

POINT III

DUE TO THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DEFENDANT DID NOT MAKE A KNOWING AND VOLUNTARY WAIVER OF HER STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO TESTIFY ON HER OWN BEHALF.

After consideration of these contentions in light of the record and applicable legal standards, we affirm.

Following a jury trial, defendant was found guilty of the lesser-included offense of aggravated assault in the second degree, in violation of N.J.S.A. 2C:12-1b(1); robbery in the first degree, in violation of N.J.S.A. 2C:15-1; and possession of a weapon for an unlawful purpose in the third degree, in violation of N.J.S.A. 2C:39-4d. After the appropriate merger of offenses, she was sentenced to an aggregate term of twelve years imprisonment with eighty-five percent of the term to be served before parole eligibility.

Defendant's direct appeal was heard together with that of her co-defendant Marselis Gaston. We affirmed both defendants' convictions and sentences. State v. Gaston, Nos. A-4992-01 and A-6560-01 (App. Div. October 29, 2003). Defendant's petition for certification to the Supreme Court was denied on January 22, 2004. 178 N.J. 454 (2004). Defendant filed a pro se PCR petition and brief on June 15, 2004, which was supplemented by her attorney's memorandum of law. The PCR hearing was conducted before the trial judge who heard oral argument on October 28, 2005, and entered an order denying defendant's petition on November 14, 2005.

I.

Since all of defendant's claims involve the contention that various counsel provided ineffective assistance, we review the legal principles that inform our consideration of the issues. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The two-pronged Strickland/Fritz test requires defendant to establish: (1) that counsel's performance was deficient and he made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and, (2) that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694.

II.

A.

Turning to the issues raised by defendant before us, in Point I she contends, for the first time, that trial counsel rendered ineffective assistance because he failed to seek the removal of a juror who admittedly fell asleep during a portion of the trial. After extensive questioning by the trial judge of the juror and the attorneys, both defense counsel essentially consented to the juror's continued service at trial.

The substance of this issue was raised on defendant's direct appeal in the context of whether or not the failure to remove the juror was plain error by the trial judge. We concluded it was not. Defendant now argues that her trial counsel provided ineffective assistance because he did not challenge the sleeping juror's continued service. She claims that counsel never consulted with her regarding the strategic decision to allow the juror to remain and she never waived her right to seek the juror's dismissal. Her co-defendant raised the identical issue and argument before us in his direct appeal. We concluded that the issue was without merit.

We need not re-examine the merits of defendant's argument. R. 3:22-5 provides,

Bar of ground expressly adjudicated

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

We conclude defendant's contention has already been adjudicated in the context of her co-defendant's appeal and any further consideration is unwarranted.

B.

Defendant next contends that various counsel provided ineffective assistance based upon three alleged errors in the jury charge. First, she argues that the charge on accomplice liability was erroneous and that trial counsel and appellate counsel were ineffective for failing to object to the charge or raise the issue on appeal. We also note that PCR counsel did not raise this issue, though defendant does not claim ineffective assistance of counsel in this regard.

We dispatch with this contention quickly. Appellate counsel did, in fact, raise the issue on direct appeal, and we concluded it was without merit and warranted no further discussion under R. 2:11-3(e)(2). Our independent review of the charge as given fails to disclose any error and, therefore, the argument that any counsel provided ineffective assistance by failing to object to it, or present the issue on appeal, is clearly without merit.

Defendant next contends that her trial counsel's failure to request a jury charge on the lesser-included offense of third-degree aggravated assault under N.J.S.A. 2C:12-1b(7) demonstrates his ineffective assistance. She contends that the jury could have concluded that the victim's injuries amounted only to "significant bodily injury," as opposed to "serious bodily injury," as set forth in N.J.S.A. 2C:12-1b(1), and thus could have found her guilty of a third degree, as opposed to a second degree, offense.

The State's proofs at trial included the testimony of the victim in the case, Bobby Hall, who was already acquainted with defendant and her co-defendant before the night in question. Hall claimed that defendants robbed and assaulted him with a crowbar. He claimed as a result of the assault he suffered a laceration that left a visible scar, and his eyesight was impaired to the point that he now required eyeglasses. The State produced the doctor who treated Hall at the hospital who testified that a single blow to the head from the crowbar could have killed the victim.

Marselis Gaston testified for the defense that he and the victim engaged in a fight and that no assault took place at all. He contended that whatever injuries the victim received, they were as a result of the mutual combat, not from being struck with a crowbar by either defendant or himself. He also denied that he or defendant robbed the victim.

Defendant was indicted for attempted murder. At the charge conference, defense counsel requested a charge on "aggravated assault in the second degree and aggravated assault in the third degree . . . based upon the severity of the injuries or lack of significant or serious bodily injury." Although the assistant prosecutor and the judge agreed that lesser-included aggravated assault charges needed to be submitted to the jury, no one ever identified the actual offense to be charged by statutory reference. Ultimately, the trial judge instructed the jury as to N.J.S.A. 12-1b(1), aggravated assault in the second degree where serious bodily injury results, and N.J.S.A. 2C:12-1b(2), aggravated assault in the third degree where bodily injury results from the use of a deadly weapon. Defense counsel did not object to the charge. The jury verdict form listed the offenses simply as aggravated assault in the second and third degree.

The jury acquitted defendant of attempted murder, but found her guilty of aggravated assault in the second degree. It also answered a specific interrogatory in the affirmative finding that defendant "caused serious bodily injury" to the victim. In finding defendant guilty of robbery in the first degree, the jury again answered a specific interrogatory in the affirmative finding defendant "caused serious bodily injury" to the victim during the course of a theft. Lastly, the jury found defendant guilty of possession of a weapon, the crowbar, for an unlawful purpose.

After the PCR hearing, in his written decision, the judge reasoned that he was only required to instruct the jury on those offenses that were "clearly indicate[d]" by the evidence, citing State v. Choice, 98 N.J. 295, 299 (1985). He further noted that the victim's injuries were permanent in nature, and, thus, did not fit within the definition of "significant bodily injury." While we disagree with the judge's analysis, we nonetheless affirm his decision. See Home Properties of New York, L.P. v. Ocino, Inc., 341 N.J. Super. 604, 615-16 (App. Div. 2001)(affirming trial judge's decision for different reasons than those expressed in his opinion).

Aggravated assault under N.J.S.A. 2C:12-1b(7) is clearly a lesser-included offense of N.J.S.A. 2C:12-1b(1), the only difference between the two being the severity of injury caused to the victim. N.J.S.A. 2C:1-8d(3). While it is not clear from the record whether defense counsel's request to charge "third degree aggravated assault" sought an instruction under b(7),

[E]ven in the absence of a request, we have "held that a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense."

[State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).]

The cause and extent of the victim's alleged injuries were vigorously contested issues at the trial. Defense counsel argued the injuries were minor and consistent with a fight. Because the jury was free to consider the issue of credibility, and could have accepted that the victim was not as severely injured as he claimed, a charge as to N.J.S.A. 12-1b(7) should have been given.

Assuming arguendo that trial counsel's performance or appellant counsel's performance was deficient under the Strickland/Fritz standard, we are nevertheless convinced that "the results of the proceedings" would not have been different if the charge was actually given. Strickland, supra, 466 U.S. at 694. When the judge charged the jury as to the elements of robbery, he appropriately instructed them as to the distinction between first and second degree robbery. A first degree robbery conviction requires a finding by the jury that the defendant "purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. In this case, the jury followed those instructions, which again referenced the definition of "serious bodily injury," and expressly determined that defendant had caused such an injury to the victim during the course of a theft.

Thus, independent of the aggravated assault instructions, the jury reached a determination that defendant had indeed caused "serious bodily injury" to Hall, thus rejecting defendant's appeal regarding the severity of the injuries. We are confident, therefore, that even if the judge had charged the jury with respect to N.J.S.A. 2C:12-1b(7), the result would have been the same, and we reject defendant's ineffective assistance of counsel claim in this regard.

Defendant next argues that trial and appellate counsel provided ineffective assistance by failing to object to alleged erroneous jury instructions regarding the crowbar used in the assault and robbery and its status as a "deadly weapon." Defendant argues that when charging the jury as to the assault and robbery, the judge removed the fact finding obligation from the jurors, essentially telling them the crowbar was a deadly weapon. Since a crowbar can have lawful uses, and is not per se a deadly weapon, defendant claims the jury was misled. She argues her trial counsel's failure to object to the charge, and her appellate counsel's failure to raise the issue on appeal, demonstrate their ineffective assistance.

In his written decision, the judge noted first that the factual disputes in the testimony at trial centered on whether defendant or her husband had a crowbar at all, not how it was used. He also noted that an examination of the entire charge revealed that he appropriately defined "deadly weapon" for the jury and that the disputed portions of the charge were taken out of context.

We conclude defendant's argument in this regard is without sufficient merit to warrant further discussion in this opinion, and we affirm substantially for the reasons set forth by the judge. R. 2:11-3e(2).

C.

Lastly, defendant argues that due to trial counsel's ineffective assistance, she did not knowingly and voluntarily waive her rights to testify. We disagree.

In his written decision, the judge determined this claim was barred by R. 3:22-4 because it should have been raised on direct appeal. He reasoned that because defendant's appellate counsel was not her trial counsel, the case was an exception to the general rule that claims of ineffective assistance of counsel are not subject to the procedural bar of the R. 3:22-4. State v. Preciose, 129 N.J. 451, 459-60 (1992).

Citing our opinion in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), the judge also reasoned that defendant's claims regarding her trial counsel's failure to properly advise her in this regard were merely "bare allegations." He also noted that the trial transcript clearly indicated that defendant was made aware of the charges against her, acknowledged she did not wish to testify, and further admitted that her decision was voluntarily made. The judge concluded defendant failed to make a prima facie case of trial counsel's deficient performance, was therefore not entitled to an evidentiary hearing, and had not demonstrated ineffective assistance by trial counsel.

We likewise conclude that defendant's contention in this regard is unpersuasive. Although we disagree with the judge's conclusion that her claim was procedurally barred, we affirm substantially for the reasons expressed by the judge in the balance of his opinion on the issue.

Affirmed.

 

We have not been provided with defendant's pro se petition or brief.

Defendant's PCR brief argued that appellate counsel also provided ineffective assistance for failing to raise the issue on appeal. Defendant, however, has not raised that issue before us.

Pursuant to N.J.S.A. 2C:11-1(d), "'Significant bodily injury' means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses."

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A-2371-05T4

October 9, 2007