STATE OF NEW JERSEY v. STEVEN ST. FLEUR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1460-07T41460-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN ST. FLEUR,

Defendant-Appellant.

_______________________________________

 

Submitted December 3, 2008 - Decided

Before Judges Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-04-1363.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Steven St. Fleur appeals from the August 22, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

In June 2003, defendant was convicted by a jury of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; first-degree murder of Emmanuel Previllon, N.J.S.A. 2C:11-3a(1)(2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was acquitted of the murder of Edner Pierre and the aggravated assault of Reginald Fils. Judge Michael L. Ravin imposed a custodial term of thirty years with a thirty-year period of parole ineligibility on the murder charge. The conspiracy charge and possession of a weapon for an unlawful purpose charge merged with the murder charge, and a concurrent four-year term was imposed on the unlawful possession of a weapon charge. We affirmed on direct appeal. State v. St. Fleur, No. A-4557-03T4 (App. Div. Oct. 12, 2006), certif. denied, 189 N.J. 428 (2007).

The facts of the offense are fully set forth in our opinion on direct appeal. Briefly, on July 28, 2001, a large barbecue was held in Maplewood. Defendant and co-defendants Greg Ulysse and Fangshiyu Floxeril were at the barbecue. Emmanuel Previllon and Edner Pierre were also in attendance. A confrontation began when Ulysse entered the party and saw Previllon looking at Ulysse's girlfriend. Ulysse shouted at Previllon that he was going to kill him. Defendant was somewhere in the crowd. Ulysse then crossed the street only to return about two minutes later, bringing a group of men with him, including defendant.

When the group of men returned to the party, the argument continued. Ulysse passed Florexil an automatic gun. Florexil then took a few steps toward Previllon and pushed him. Moments later, Ulysse took the gun back from Florexil and fired a shot into the air. At this point, the police arrived and everyone at the party dispersed.

Reginald Fils and Emmanuel Marrow left the barbecue. They then met up with Previllon, Pierre and Andre Richmond in Irvington. Marrow returned home while Fils, Previllon, Pierre and Richmond continued on to a party at Richmond's house in Newark.

Approximately forty-five minutes to an hour later, a black Pathfinder pulled up outside of Richmond's house. Fils testified that as the vehicle pulled up he could see Ulysse in the front passenger seat. Florexil, the owner of the Pathfinder, was the driver. Edson Sainte and defendant were the other two occupants of the Pathfinder. Ulysse signaled to Previllon with a hand wave to meet him down on the corner of Kerrigan Boulevard and Varsity Road. Richmond decided he did not want to go, however, Fils, Pierre and Previllon decided to drive to the corner in an Acura.

As Previllon got close to where the Pathfinder was parked, he began to backup the Acura. Pierre yelled, "Emmanuel, guns." Previllon panicked. The rear of the Acura hit the front of the Pathfinder. Sainte, a passenger in the Pathfinder, testified that Ulysse exited the vehicle with a gun, the same gun he saw Ulysse place in the center console after the shooting.

Pierre, who was sitting in the front passenger seat of the Acura, was shot in the head and killed while still in the car. Fils and Previllon ran from the vehicle in different directions. Fils made it to a taxi, which he took back to Irvington. Previllon was later found dead on the sidewalk.

Florexil, was shot on the left side of his back. He testified to hearing about fifteen shots. While still on the ground, he saw that defendant had a revolver in his hands.

After the shooting, Ulysse, Sainte and defendant drove Florexil to the hospital. While driving to the hospital, Sainte testified to hearing Ulysse say, "I think I hit one" and defendant responding with, "I think I got one too." Sainte also heard defendant say to Ulysse, "we got to lay low for a while."

Defendant testified that he did not have a gun at the time of the shooting and rather, upon hearing the gunshots, ran behind the Pathfinder and laid on the ground. Defendant testified that the only person he saw with a gun was Ulysse.

According to defendant, after leaving the hospital, he stopped by his house, and then he and Ulysse went to Allentown, Pennsylvania. It was common for him to go to Allentown because his son and son's mother lived there. Defendant admitted to saying "we have to lay low for a while," but testified that he was not worried about the police, but rather, that someone would come after him from the shooting.

Five months later, defendant was stopped while driving a motor vehicle displaying an expired inspection sticker in Allentown. Defendant produced a New Jersey driver's license with a different name. A computerized license plate check revealed that the license had been suspended by the State of New Jersey. The driver's license was seized and the vehicle impounded. However, defendant was released.

Subsequent police investigation connected defendant to the double homicide in Newark. Further investigation led to a house at Prospect Avenue in Allentown where Ulysse was located. Ulysse was arrested. Later that same day, police officers responded to another address defendant was known to frequent. There, the mother of defendant's son answered the door and gave the officers consent to search the residence. Defendant was found sleeping in the basement. He was placed under arrest. A search of the premises was conducted, which yielded a red knapsack, containing a .38 caliber revolver with five spent bullet casings and one empty chamber.

A few days later, the police searched an Acura Legend. A Bryco semiautomatic pistol was found in the vehicle. Lens Dextra, owner of the vehicle, testified he did not know how the gun got there.

Newark Police Detective Luis Alarcon, an expert in the field of firearms and ballistics examination, testified that the nine-millimeter casings found at the scene, as well as the first three projectiles tested, including one received from the medical examiner, were discharged from the Bryco semiautomatic pistol found in Dextra's vehicle. Alarcon determined that this pistol was used to kill Previllon. Alarcon further testified that the remaining five casings, as well as the other three projectiles, including one received from the medical examiner, were fired from the Smith & Wesson .38 caliber revolver found in the knapsack retrieved from the home where defendant was apprehended. Alarcon determined that this revolver was used to kill Pierre.

Defendant filed pro se a PCR petition. Assigned PCR counsel filed a brief and certification in support of the petition. The PCR petition alleged that the trial judge erred by: denying a motion for a judgment of acquittal on the murder and conspiracy counts; explaining the meaning of the term "no bill" in response to a jury question. In a pro se brief, defendant alleged that: there was insufficient evidence to prove a conspiracy with Ulysse; the judge gave misleading jury instructions on conspiracy to commit murder; and the judge should have charged sua sponte as a lesser included offense manslaughter. Judge Ravin denied an evidentiary hearing and the petition and issued a written opinion.

On appeal, defendant contends:

I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings and Petitions For [PCR].

B. Petitioner Received Ineffective Assistance Of Counsel Because Trial Counsel Failed To File A Motion To Suppress As Requested By Petitioner.

C. Petitioner Received Ineffective Assistance Of Counsel Because Trial ounsel Failed To Call Witness Zenola Moncrease To Testify On Behalf Of The Defense.

D. Petitioner Received Ineffective Assistance Of Counsel Because Trial Counsel Failed To Renew His Earlier Motion To Dismiss Counts One And Two Of The Indictment At The End Of The Defense Case.

E. Petitioner Received Ineffective Assistance Of Counsel Because Trial Counsel Failed To Object To The Charge For Conspiracy As Read To The Jury.

F. Petitioner Received Ineffective Assistance Of Counsel Because Trial Counsel Failed To Object When Necessary and Ultimately Ceased Acting As Petitioner's Advocate While The Jury Deliberated.

G. Petitioner Received Ineffective Assistance Of Counsel Because Trial Counsel Failed To Move For A Judgment Notwithstanding The Verdict.

H. Petitioner Received Ineffective Assistance Of Counsel Because Cumulative Errors By Counsel Amounted To Ineffective Assistance And The Denial Of A Fair Trial.

In a pro se supplemental brief, defendant contends:

I. APPELLANT COURT COUNSEL ON DIRECT APPEAL WAS INEFFECTIVE SINCE THE SUM OF ATTORNEY ARGUMENTS RAISED IN BRIEF, WERE ALTOGETHER INEFFECTUAL IRRELEVANT AND WITHOUT MERIT AS LEGAL ARGUMENT(S).

II. COUNSEL ON POST CONVICTION PROCEEDINGS WAS ALSO INEFFECTIVE BY FAILING TO PERFECT THE DEFENDANT'S (PCR) PETITION, BY SHORING UP ANY DEFICIENCIES, ADVANCING OR EXPANDING THE PETITION TO INCLUDE EFFECTIVE CLAIMS OR CHALLENGE THE EXISTING JUDGMENT.

III. PCR COURT [JUDGE MICHAEL L. RAVIN, J.S.C.] IMPROPERLY VOUCHED FOR CREDIBILITY OF STATES WITNESSES (I.E. POLICE), ACQUITTING THE OFFICERS OF UNLAWFUL SEARCH AND SEIZURES, AS A BASIS TO DENY DEFENDANT'S INEFFECTIVE CLAIM WHERE DEFENDANT'S TRIAL COUNSEL FAILED TO FILE THE REQUESTED MOTION TO SUPPRESS BASED ON UNLAWFUL SEARCH & SEIZURE.

IV. DEFENDANT WAS IMPROPERLY DENIED RELIEF ON [PCR] PETITION INEFFECTIVENESS CLAIM. [JUDGE MICHAEL RAVIN] OPINION; "DEFENDANT FAILED TO MEET THE "BUT FOR" STANDARD PART OF THE CLAIM." THAT ADVERSE DETERMINATION WAS BASELESS SINCE THE COURT CANNOT PROPERLY MAKE SUCH DETERMINATION WITHOUT FIRST CONSIDERING THE BASIS & EXCULPATORY POTENTIAL OF WITNESS (ZENOLA MONCREASE) DENIED TESTIMONY.

V. THE PCR COURT ERRED IMPROPERLY DISMISSING DEFENDANT'S INEFFECTIVE CLAIM, WHERE THE ATTORNEY AT TRIAL FAILED TO RENEW MOTION TO DISMISS. IN IT'S OPINION "DEFENDANT FAILED TO STATE PRIMA FACIE CASE" & COUNSEL IS NOT OBLIGATED __ __ "(BREVITY)., IS MOOT SINCE DEFENDANT'S (DIRECT) APPELLATE COUNSEL FAILED TO MEET THE PROFESSIONAL TEST STANDARD OF ATTORNEY'S EFFECTIVENESS UNDER BOTH R. 2A:158 A-5; DUTIES OF THE PUBLIC DEFENDER & THE "RPC."

VI. PCR COURT ERRED IMPROPERLY DISMISSING DEFENDANT'S INEFFECTIVE CLAIM, WHERE DEFENDANT'S TRIAL COUNSEL FAILED TO OBJECT TO JURY CHARGE OF CONSPIRACY, WHERE THE CHARGE WAS NOT CONTAINED IN THE ORIGINAL INDICTMENT, THUS CONSTRUCTIVE AMENDMENT IMPROPERLY OCCURRED AT TRIAL, VIOLATING DUE PROCESS AND DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL (THE GIST OF CLAIM WENT UNNOTICED).

VII. PCR COURT ERRED IMPROPERLY REAFFIRMING THE TRIAL JUDGE'S ERRONEOUS DETERMINATION, OVERLOOKING THE PREJUDICE TO DEFENDANT, REGARDING INAPPROPRIATENESS OF VERY SPECIFIC ADVERSE COMMENTS OF DEFENDANT'S TRIAL ATTORNEY AND THE DETRIMENTAL AFFECT OF THE COUNTERPRODUCTIVITY DISPLAY WHICH WAS INEFFECTIVENESS.

VIII. PCR COURT ERRED IN JUDGE'S ABUSE OF DISCRETIONARY POWER BY THE INAPPROPRIATE DISMISSAL OF A (ON THE WHOLE) NEW LEGAL CLAIM, BASED ON A QUESTIONABLE DETERMINATION PREVIOUSLY MADE REGARDING A SEPARATE CLAIM, NECESSARILY MENTIONED AS A MATERIAL ISSUE OF FACT.

IX. FACT THAT APPELLATE COURT MAY HAVE PREVIOUSLY RULED ON "SOME OF THE ALLEGED ERRORS" CANNOT CONSTITUTE A "LACK OF BASIS," SUFFICIENT FOR THE PCR COURT TO DENY THOSE MATTERS NEWLY ASSERTED ON FIRST TIME [PCR] PETITION.

It is well settled that a claim for PCR must be established by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). Procedural bars exist, however, in order to promote finality in judicial proceedings. State v. McQuaid, 147 N.J. 464, 483 (1997). PCR may not be used to relitigate a claim already decided on the merits or as a substitute for direct appeal. R. 3:22-3 and -5. Furthermore, Rule 3:22-4 prevents a defendant from using PCR to assert a new claim that could have been raised on direct appeal, unless one of the following exceptions is satisfied:

(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United State or the State of New Jersey.

[R. 3:22-4.]

An ineffective assistance of counsel claim falls within Rule 3:22-4(c), because such a claim is grounded in the Sixth Amendment and the New Jersey Constitution. Preciose, supra, 129 N.J. at 460.

To establish a prima facie claim of ineffective assistance of counsel and entitlement to a hearing, a defendant must show he has a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). This standard has been adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The first prong of the Strickland-Fritz standard requires defendant to demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether counsel's conduct fell below an objective standard of reasonableness. Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Therefore, "[a]s a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).

A defendant challenging counsel's performance must overcome a strong presumption that counsel exercised reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Furthermore, "[j]udicial scrutiny of counsel's performance must be highly deferential." Ibid. This deference requires that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Ibid.

The second prong of the Strickland-Fritz test requires defendant to show that the deficient performance was prejudicial to the extent that defendant was deprived of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing 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. In such cases where there is a complete denial of the right to counsel altogether, prejudice may be presumed. United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).

Here, defendant argues that he received ineffective assistance of counsel because trial counsel failed to file a motion to suppress as requested by defendant. Defendant certifies that he asked trial counsel to file a motion to suppress the weapon found in the red knapsack, however, counsel never filed such a motion. The PCR judge found that the police officer's had a reasonable belief that a consenting third party, Theresa Eunice, had sufficient control over the property to consent to the search. Therefore, the judge did not find trial counsel ineffective for not filing a motion to suppress. We agree. Because the search was not illegal, but pursuant to valid consent, defendant does not meet the first prong of the Strickland-Fritz standard.

Defendant also argues that trial counsel failed to call witness Zenola Moncrease to testify on his behalf. The PCR judge rejected defendant's argument, finding that neither prong of the Strickland-Fritz test was satisfied.

The Supreme Court has found that "[d]etermining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront." State v. Arthur, 184 N.J. 307, 320 (2005). Therefore, the decision at trial as to what witness's to call is "clearly a matter of trial strategy which is entrusted to the sound discretion of competent trial counsel." State v. Coruzzi, 189 N.J. Super. 273, 321, certif. denied, 94 N.J. 531 (1983).

It is far from clear that Moncrease's testimony would have exculpated defendant. Moncrease stated that she did not see who fired the shots into the Acura nor did she see anyone actually get struck by the gunfire. Rather, Moncrease said that she only heard the shots going off. Her statement that she heard the gunfire as the two men exiting the passenger side of the Pathfinder ran past the Acura does not disprove that defendant was the shooter.

Moreover, even if trial counsel was deficient in not calling Moncrease as a witness, defendant still has not proven that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant was acquitted of the murder of Edner Pierre, who was the victim shot with the gun found in defendant's knapsack. Defendant was found guilty of conspiring with Ulysse to commit murder and for the murder of Previllon who was shot by Ulysse. Therefore, Moncrease's testimony would not have changed the outcome of the trial as it would not have affected defendant's conviction for conspiracy or murder.

Defendant also argues trial counsel failed to renew his earlier motion to dismiss counts one and two of the indictment at the end of the defense case. The PCR judge rejected defendant's argument. We agree that a motion for a judgment of acquittal at the close of all evidence would not have been successful.

Here, defense counsel filed a motion for judgment of acquittal on the murder and conspiracy counts at the close of the State's case. We rejected on direct appeal defendant's argument that the judge erred in his denial of the motion.

Defendant also argues that trial counsel failed to object to the conspiracy charge. The PCR judge rejected defendant's argument, finding that defendant did not show a prima facie case. We agree.

Defendant already raised as an issue on direct appeal that the trial judge erred in providing a misleading jury instruction on conspiracy to commit murder. We rejected this argument, finding that we could "discern no flaw warranting our intervention in the trial court's charge to the jury on conspiracy." St. Fleur, supra, No. A-4557-03T4 (App. Div. Oct. 12, 2006) (slip op. at 7), certif. denied, 189 N.J. 428 (2007).

Defendant argues trial counsel failed to pursue an emergent appeal of the court's proposed answer to a jury question. The PCR judge rejected this argument. So do we.

During deliberations, the jurors asked the court, "[a]re we permitted to ask what the legal term 'no bill' means? If so, please give us the definition." The judge responded with, "[a] no bill is a determination by the grand jury not to return an indictment." Defendant's trial counsel objected to this response and requested time to consider an emergent appeal based on the judge's response. However, after delays in the proceedings, trial counsel become frustrated with the amount of time that had gone by and decided to withdraw his request for an emergent application.

Defendant's appellate counsel raised the issue before us. We determined the trial judge's "response was simple, accurate and neutral. It gave the jury the information it had sought that would enable it to understand the testimony it had heard." Ibid.

Defendant argues that trial counsel failed to move for a judgment notwithstanding the verdict. The PCR judge rejected defendant's argument. We agree that such a motion would not have been successful, considering the evidence.

Defendant argues that although separately the previous errors may have been harmless, when viewed cumulatively, each of the alleged errors committed by trial counsel is sufficient to require reversal. The PCR judge rejected this argument, finding that defendant did not state a prima facie case on any of the claims. We agree. The cumulative error doctrine provides that if the aggregate effect of the errors render the trial unfair then a new trial shall be granted before an impartial jury. State v. Orecchio, 16 N.J. 125, 129 (1954). "[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error will render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007), cert. denied, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). That is not the case here.

Defendant further argues in his pro se brief that appellate counsel was ineffective. Assuming arguendo that appellate counsel was deficient in the arguments raised, this deficient performance was not prejudicial to the extent that defendant was deprived of a fair trial. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This, as previously discussed, requires a showing 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.

Defendant here does not provide any support for how the outcome of the case would have come out differently if appellate counsel had not been allegedly deficient in deciding the issues to be appealed. Therefore, the Strickland-Fritz standard is not satisfied and defendant has not established a prima facie case for ineffective assistance of counsel.

Defendant further argues pro se that PCR counsel was ineffective. Again, assuming arguendo that PCR counsel was deficient in the arguments raised in support of defendant's petition for PCR, this deficient performance was not prejudicial to the extent that defendant was deprived of a fair trial. See Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This, as previously discussed, requires a showing 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.

Defendant here does not explain in what way PCR counsel was deficient nor what arguments counsel should have instead made in support of defendant's petition for PCR. Further, defendant does not provide any support for how the outcome of the case would have come out differently if PCR counsel had not been allegedly deficient in deciding the issues for which PCR was to be based. For these reasons, the Strickland-Fritz standard has not been satisfied and defendant has thus not established a prima facie case for ineffective assistance of counsel.

 
Affirmed.

(continued)

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A-1460-07T4

August 21, 2009