STATE OF NEW JERSEY v. MICHAEL PALMER
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2576-03T5
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
MICHAEL PALMER,
Defendant-Appellant.
__________________________________
December 14, 2006
Submitted: November 1, 2006 - Decided
Before Judges Cuff and Winkelstein.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4196.
Paul W. Bergrin, attorney for appellant (Robert Carter Pierce, on the brief).
Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant was convicted of knowing or purposeful murder, contrary to N.J.S.A. 2C:11-3a (Count One); unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (Count Two); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count Three). At sentencing, the trial judge merged Count Three with Count One and imposed a thirty-year term of imprisonment with a thirty-year period of parole ineligibility. On Count Two, defendant was sentenced to a concurrent term of three years. See footnote 1 The appropriate penalties and assessments were also imposed.
On August 4, 2001, at approximately 4:25 p.m., police and paramedics responded to a call that there had been a shooting at 189 Columbia Avenue in Irvington. On arrival, police found Tarrod Grantham, known locally as Rallo, sprawled on the front porch, bleeding from a gunshot wound to the chest. The victim was unresponsive and was declared dead on arrival at the hospital.
The State's case relied heavily on the testimony of C.D., a fourteen-year-old student at the time of the shooting. She resided at 187 Columbia Avenue. According to C.D., she was outside her home between 3:00 p.m. and 3:30 p.m., when she saw Rallo walking toward 189 Columbia Avenue, and then up the steps of the building. She knew that Rallo lived on Isabella Avenue in Irvington. C.D. observed Rallo standing on the front porch of 189 Columbia Avenue with his friend "Slick." C.D. then re-entered her home.
At approximately 4:20 p.m., C.D. returned to the porch of her home with her friend Marsha. C.D. testified that she saw Rallo and Slick outside 189 Columbia Avenue, and "Mike" walking toward 189 Columbia Avenue. C.D. identified defendant as "Mike," and stated that she had seen him in the neighborhood often, "more than 20 times."
According to C.D., as Mike approached 189 Columbia Avenue, Slick ran inside the building. Mike drew near to Rallo and pointed his right arm at Rallo, who was standing on the steps. C.D. then "heard a boom, like a firecracker shot," saw smoke, and ran up the steps. C.D. then observed Mike running toward Eighteenth Avenue. The medical examiner confirmed that the shooter was very close to the victim when the shot was fired and opined that the victim was shot in a slightly downward direction.
C.D. promptly ran to Rallo and saw that he had been shot in the chest. She stated that his head was in the hallway of the building, while the remainder of his body was on the front porch.
When the police arrived at the scene, C.D. approached an officer and told him that Mike shot Rallo and provided the officer with a physical description of Mike. She then went to the police station to make a photo identification of Mike and to give a statement. C.D. testified that she went through approximately twenty photos on the computer and was able to identify defendant as Mike.
Once C.D. identified defendant, the police obtained a warrant for his arrest and made a number of attempts to find him at his residence at 750 Eighteenth Avenue in Irvington. Defendant was arrested on August 28, 2001.
On appeal, defendant raises the following arguments:
POINT I
MR. PALMER WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE STATE ELICITED TESTIMONY FROM DETECTIVE BARNWELL THAT MR. PALMER WAS IDENTIFIED FROM MUG SHOTS, WHICH IMPROPERLY INFORMED THE JURY THAT MR. PALMER HAD A CRIMINAL RECORD (Not Raised Below).
POINT II
THE TRIAL COURT ERRED IN FAILING TO GIVE THE JURY A CURATIVE INSTRUCTION, SUA SPONTE, CONCERNING THE TESTIMONY THAT MR. PALMER'S IDENTIFYING PHOTOGRAPH WAS A MUG SHOT. (Not Raised Below).
POINT III
MR. PALMER WAS DEPRIVED [OF] EFFECTIVE ASSISTANCE OF COUNSEL.
(A) TRIAL COUNSEL FAILED [TO] INVESTIGATE THE CRIME AND CALL AN EYEWITNESS[] TO THE SHOOTING AS A DEFENSE WITNESS.
(B) TRIAL COUNSEL FAILED TO ADEQUATELY CROSS EXAMINE C.D.
1. Height of the Shooter.
2. Residence of the Shooter.
3. Prior Observations of the Shooter.
4. Location of the Shooting.
5. Cumulative Cross Examination Deficiencies.
(D) TRIAL COUNSEL FAILED TO RAISE AN ALIBI DEFENSE.
(E) TRIAL COUNSEL'S FAILURE TO OBJECT, MOVE FOR A MISTRIAL AND REQUEST A CURATIVE INSTRUCTION AFTER DETECTIVE BARNWELL TESTIFIED THAT MR. PALMER WAS IDENTIFIED FROM A "MUG SHOT."
(F) CUMULATIVE ERRORS.
POINT IV
THE TRIAL COURT ERRED IN NOT GRANTING MR. PALMER'S MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
We affirm.
At trial, Officer Harvey Barnwell related that C.D. identified defendant after viewing approximately twenty photos. In the course of his testimony, he described the computerized photo system as a mug shot system. Defendant argues that this reference was error and that the error was compounded by the absence of a curative instruction. Defendant urges that the compound error requires a new trial. We disagree.
Testimony that a defendant has been identified from a photograph that is a mug shot has the capacity to provide information to a jury that a defendant has a prior criminal record. State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988). Depending upon the surrounding circumstances, testimony that mug shots were used in the identification of a defendant has been found to constitute reversible error. State v. Cribb, 281 N.J. Super. 156, 160 (App. Div. 1995). Specifically, testimony referring to mug shots, plus additional testimony emphasizing a defendant's criminal history, have been found sufficiently prejudicial to warrant reversal of a conviction. Id. at 161. Accord State v. Hogan, 297 N.J. Super. 7, 15-16 (App. Div.) (multiple references to the Bureau of Criminal Identification required a new trial), certif. denied, 149 N.J. 142 (1997). Additionally, when such testimony has been given and the trial judge fails to provide a sufficient curative or limiting instruction to the jury, we have found that the reference to mug shots had a "substantial capacity to influence the jury in favor of conviction." Cribb, supra, 281 N.J. Super. at 162; Hogan, supra, 297 N.J. Super at 15-16. Further, reversal is appropriate where the only purpose of the mug shot testimony is to "unfairly . . . permit the jury to draw the inference that defendant had a prior criminal record." Taplin, supra, 230 N.J. Super. at 99.
Conversely, reference to the use of mug shots in identifying a defendant has been deemed harmless error when the identification is an issue, only a single reference to a mug shot occurred, and the trial judge delivered a curative instruction. See State v. Harris, 156 N.J. 122, 173 (1998) (solitary, fleeting references to mug shots will generally not require a new trial), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001); Taplin, supra, 230 N.J. Super. at 99 ("where identification is an issue and the State's use of a mug shot is reasonably related to that issue . . . the mug shot is admissible for that purpose, in as neutral a form as possible and despite the inferences it nevertheless raises"); State v. Porambo, 226 N.J. Super. 416, 425-26 (App. Div. 1988) (the combination of the "fleeting" nature of the officer's comment and the subsequent curative instruction was sufficient to support a finding of no reversible error); State v. Miller, 159 N.J. Super. 552, 562 (App. Div.) (a solitary and fleeting reference to a mug shot, coupled with an appropriate curative instruction does not require a reversal), certif. denied, 78 N.J. 329 (1978).
Here, the jury heard a single reference to the "mug shot." Specifically, Officer Barnwell's testimony explained the method used to show a series of photos to a witness to a crime. He stated:
Well, what happens with the computerized photo system, you -- it's a mug shot system of several different photos at one time, so you may get 12 photos, 12 different black males at the same time; and what she did was she looked through that for about 20 minutes, give or take approximately 20 minutes, and she found one of the photos and said that was Mike.
Although there were multiple references to photos after this statement was made, none of these references mentioned the term "mug shot" or that the subjects had any prior criminal history.
In addition, Judge McCormack provided a curative instruction to the jury twice regarding the photograph used to identify defendant. The first instruction was provided after Officer Barnwell's direct testimony and before his cross-examination, and the second, virtually identical instruction, was provided as part of the jury charge. In his initial instruction, the judge stated:
Ladies and gentlemen, you will have that photograph with you during your deliberations now that it's in evidence, but let me also point out something to you. The photograph that you have was obviously in the possession of a law enforcement agency. The law enforcement agencies and government agencies come into possession of photographs in various ways.
You are not to consider the fact that in this case the Irvington Police had obtained a photograph from a computer of the defendant as prejudicing him in any way. The photograph is not evidence that Michael Palmer has ever been arrested or convicted of any offense.
Photographs come into the hands of law enforcement agencies, as I said, from a variety of sources, including but not limited to driver's license applications, passports, alcohol beverage control identification cards, various forms of government employment, private employment requiring state regulation, included but not limited to casino license applications or security guard applications, et cetera, or from a variety of other sources unconnected with any type of criminal activity.
So, as I said, the mere fact that the Irvington Police may have had access to a computer to a photograph of the defendant, should be not considered in any way by you as prejudicing him as it relates to this case.
This instruction had been requested by the State and defense counsel concurred. The single, brief reference and the judge's prompt and comprehensive curative instructions to the jury mitigated any harm caused by this single reference.
A somewhat more difficult issue is defendant's contention that his trial attorney was ineffective. Defendant asserts that trial counsel failed to investigate the crime and to call C.D.'s friend, another eyewitness to the shooting. Defendant also alleges that trial counsel failed to conduct an adequate cross-examination of C.D. and the medical examiner. Defendant also contends that trial counsel should have asserted an alibi defense and should have moved for a mistrial. See footnote 2
Prior to sentencing, defendant filed a motion for a new trial based on the ineffective assistance of trial counsel. Substituted counsel filed a brief and an evidentiary hearing was conducted at which defendant's trial attorney, his grandmothers, and his brothers, testified.
Nikole Pezzullo testified that she commenced her representation of defendant in March 2002, approximately eight months after the shooting. She was defendant's third attorney. She stated that on the day she was retained she met with defendant, who was in custody, and his grandmother, Linda Ramsey. She also testified that she spoke with Ramsey very frequently during her representation of defendant. Pezzullo had limited contact with defendant's other grandmother, Sarah Palmer.
Pezzullo testified that she and defendant discussed the issue of alibi prior to being retained and after she was retained. Specifically, Pezzullo testified that she and defendant discussed her concerns with using an alibi defense, including the fact that it might cause the prosecutor to put on a stronger case, that the jury might not react favorably toward the use of defendant's grandmother (Palmer) as his alibi, and that there was a period of time, around the time of the shooting, when his grandmother could not account for his whereabouts. Pezzullo also stated that she spoke with Ramsey regarding defendant's alibi defense. Based on these conversations, Pezzullo concluded that defendant's alibi was weak at best and believed it could harm his defense.
Pezzullo also testified that she tried to contact C.D., but discovered she had moved. Pezzullo eventually received C.D.'s new address shortly before trial, but never spoke to her. Pezzullo noted that each of the three statements differed in some degree, and she concluded it was better to rely on the statements C.D. had already given and try to exploit the inconsistencies at trial.
Pezzullo stated that she went to the crime scene, but found little to investigate due to the passage of time since the shooting and the alteration of the buildings. The buildings at 187 and 189 Columbia Avenue had been vacated and boarded up in the Spring following the shooting. She also stated that she spoke to defendant about the possibility of using Slick as a witness. Defendant, however, instructed her not to speak to him.
Judge McCormack held that counsel's performance was not deficient. Specifically, he stated that trial counsel's investigation of the case, her consultations with defendant and her trial strategy could not be considered deficient. As to defendant's claim that the verdict was against the weight of the evidence, Judge McCormack stated, "I presided over the trial, I listened to all the witnesses, I observed their demeanor as they testified. I find that a reasonable jury could find as this jury did that the defendant is guilty of murder."
The standard for assessing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In State v. Fritz, 105 N.J. 42, 58 (1987), the Court adopted the Strickland standard. Therefore, a defendant must establish that counsel's performance "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, such that counsel's acts or omissions fall "outside the wide range of professionally competent assistance," id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, appropriate in the given circumstances; and 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. In other words, "[t]he error committed must be so serious as to undermine the court's confidence in the jury verdict or the results 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), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271 (2006).
Our assessment of defendant's ineffective assistance of counsel claim is assisted by the evidentiary hearing conducted in October 2003, prior to sentencing. Judge McCormack made several findings of fact regarding trial counsel's performance prior to and during trial that are well-supported by the evidence. In short, he found that trial counsel's performance was not deficient, and he rejected the motion for a new trial based on ineffective assistance of counsel. We find no basis to disturb this decision.
Nevertheless, we do not preclude defendant from pursuing post-conviction relief based on information or evidence acquired following entry of the judgment of conviction, particularly any information that C.D.'s friend may have concerning the events of the afternoon of August 4, 2001. While this appeal was pending, defendant filed a motion to supplement the record to include an Irvington Police Department report dated August 4, 2001, investigation reports dated August 26, 2004, and February 8, 2005, and photo display and photograph identification forms dated February 7, 2005. In support of his motion, defendant stated that the supplemental material supported his contention that trial counsel was ineffective because C.D.'s friend had been located and her recollection of the events exculpated him. We granted this motion without prejudice to the State's right to argue that we should not consider these materials.
On its face, the supplemental information is equivocal. C.B., C.D.'s companion on August 4, 2001, was shown a photo display on February 7, 2005, three and one-half years following the event, and failed to identify any photo as that of the person who shot the victim. On the other hand, in an interview with an investigator on August 26, 2004, C.B. stated that Mike held out his arm towards Rallo and she heard a popping sound. She sought confirmation from C.D. that the assailant was the person known to her as Mike. She also told the investigator that C.D. knew Mike better. C.B. also told the investigator that she had never been interviewed by the police. While it may have been reasonable to expect any one of defendant's prior counsel to search for, locate and interview the friend referenced by C.D., the information provided by C.B. is not exculpatory.
We note that the State filed its brief on the same day that this court granted the motion to supplement the record and the State has not responded to this supplemental information. Moreover, none of this supplemental information has been presented to the trial judge. Therefore, we do not preclude further consideration of this information in a subsequent petition for post-conviction relief.
As noted in footnote 1, the Judgment of Conviction erroneously states that defendant must serve a concurrent thirty-year term of imprisonment for Court Two. We remand for correction of this error.
Affirmed; remanded for correction of the Judgment of Conviction.
Footnote: 2 Defendant also argued that trial counsel should have requested a curative instruction regarding the mug shot reference. As discussed earlier in this opinion, trial counsel concurred in the prosecutor's request for a curative instruction and the trial judge did so.
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